Does the Defence of Qualified Privilege Work in Singapore?

4. Qualified Privilege

In most common law democracies qualified privilege protects criticism of government political debate from libel actions. The degree of protection provided to political expression varies.

In the United States following the decisions of the U.S. Supreme Court in New York Time v. Sullivan[14] and Garrison v. Lousiana[15], a political plaintiff can only establish liability for such statements if theplaintiff can prove that the words complained of were untrue and the defendant either knew the words were false or was reckless as to their falsity.[16]

Therefore in the United States, a government official or public figure cannot succeed in a defamation suit based on a statement regarding an issue of public interest even though that statement damages the plaintiff’s reputation unless malice can be proven. Even if the defendant’s assertion is proven to be untrue and defamatory the plaintiff, to succeed, has to prove that the defendant knew the impugned statement was untrue or showed reckless disregard.[17]

In New Zealand and Australia courts have recognised a more limited defence of qualified privilege in defamation arising from political discussions. England has recognised a more general qualified privilege for discussions of matters of public concern. [18]

Australian courts have extended the defence of qualified privilege to “disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia” provided that the publication is ‘reasonable’.

The New Zealand Court in Lange v. Atkinson[19], found that the public has an interest in information about the government and concluded that a defence of qualified privilege is available for words published to the public. Justice Elias of the New Zealand Supreme Court has explained that it is an essential to the democratic political process that issues can be put forward for political debate without the risk of defamation suits. Elias J. held:

“Comment on the official conduct and suitability for office of those exercising the powers of government is essential to the proper operation of a representative democracy. Political discussion in a democracy will inevitably on occasion entail the making of statements that are likely to injure the reputation of others. Qualified privilege in my view attaches to statements made to the general public about matters of government. It is necessary for the public to be informed about these matters for a representative government to function.”[20]

The New Zealand Law Commission issued a preliminary paper criticising the decision and recommending that the defence of qualified privilege for discussion of political matters published to the general public should be available to a defendant only if the publication of the defamatory material was reasonable, i.e. if the defendant had reasonable grounds for believing the defamatory words were true and gave the plaintiff a chance to respond.[21]

The Latimer House Guidelines for the Commonwealth while affirming that freedom is expression is the foundation upon which other freedoms depend, specifically rejects the American approach and recommends that defamation law “continue to strike an appropriate balance between the protection of reputation and freedom of expression.”[22] The Guidelines explicitly provide for restrictions that are required to “respect other social interest which are of pressing and substantial significance”.

Clearly the pressing and substantial need is to protect the citizen’s right to participate in political debate during elections and not the protection of reputation.

Singapore’s Constitution provides for a freedom of expression subject to restrictions, including the restriction of defamation:

Article 14

(1)Subject to clauses (2) and (3)

(a)every citizen of Singapore has the right to freedom of speech and expression;

(2)Parliament may by law impose

(a)on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence:

The Defamation Act of Singapore, Section 14 is clearly designed to severely restrict the freedom of to discuss ‘questions in issue’ in an election (by or on behalf of a candidate) by precluding qualified privilege as a defence. Singapore’s Defamation Act is designed to preclude candidates from using this defense.

* 14.A defamatory statement published by or on behalf of a candidate in any election of the President or other elected or partially elected body shall not be deemed to be published on a privileged occasion on the grounds that it is material to a question in issue in the election, whether or not the person by whom it is published qualified to vote at the election.

Given the definition of defamatory words as ones that “tend to lower the plaintiff in the estimation of right thinking members of society generally”[23] this section seeks to remove the protection of qualified privilege from the political discussion and debate upon which an election depends. Candidates or those campaigning for them engage in political expression at the risk of defamation suits against them.

There is no question that this restriction goes beyond a restriction that is appropriate in a democratic society. Section 14 of the Defamation Act is also inconsistent with the Declaration of Commonwealth Principles, 1971 (The Singapore Declaration) which affirms citizens’ “inalienable right to participate by means of free and democratic political processes in framing the society in which they live.”[24]

Lawyers Rights Watch Canada (LRWC) seems to be suggesting that Singapore's right to criticize public figures seems to be one of the most restrictive in the Commonwealth especially compared to the First world countries.

Lee Kuan Yew said that "First World country must have First World government and opposition." Perhaps a First World country should also have First World laws.